In an unusually contentious FCC meeting, the FCC adopted rules that promote Low Power FM ("LPFM") stations seemingly to the detriment of FM translators and improvements in the facilities of full-power FM stations. While no formal text of the decision has yet been released, the Commission did release a Public Notice summarizing its action. However, given the lack of detail contained in the Notice as to some of the decisions – including capping at 10 the number of translator applications from the 2003 FM translator window that one entity can continue to process and the adoption of an interim policy that would preclude the processing of full-power FM applications that created interference that could not be resolved to an existing LPFM station – it appears that the Press Release was written before these final details were determined. And given that the two Republican Commissioners dissented from aspects of this order supported by their Chairman (and also dissented on certain cable items considered later in the meeting), one wonders about the process that resulted in the Republican chairman of the FCC voting with the two Democratic Commissioners on an item that in many respects favors LPFM stations to the detriment of existing broadcast operators.

In any event, specific decisions mentioned in today’s meeting include:

Treating changes in the Board of Directors of an LPFM station as minor ownership changes that can be quickly approved by the FCC

Allowing the sale of LPFM stations from one non-profit entity to another

Tightening rules requiring local programming on these stations

Maintaining requirements that LPFM stations must be locally owned, and limiting groups to ownership of only one station

Limiting applicants in the 2003 FM translator window to processing only 10 pending applications each, and requiring that they decide which 10 applications to prosecute before any settlement window opens (the two Republican Commissioners favored allowing applicants to continue to process up to 50 applications)

Adopting an interim policy requiring that full-power FM stations that are improving their facilities in such a way that their improvement would interfere with an LPFM station to work with the LPFM to find a way to eliminate or minimize the interference. If no resolution could be found, the full-power station’s application would not be processed (which we have expressed concerns about before)

Urging that Congress repeal the ban on the FCC making any changes that would eliminate protections for full power stations from third-adjacent channel interference from LPFMs

In a Further Notice of Proposed Rulemaking, the Commission will apparently go further to aide LPFM applicants. The Further Notice will ask for comments on:

Potentially giving LPFM stations a status superior to that of FM translators

Looking at the relationship between LPFM and full power stations to see what permanent rules can be adopted to avoid having changes in full power stations preclude the continued operation of a LPFM facility – including the possibility that full power operators would have to pay the costs of relocating LPFM stations to different channels or transmitter site locations

Revising the LPFM rules to use contour protection interference techniques, rather than the strict mileage separations currently required.

The new rules, and the new proposals could have a significant effect on broadcasters. Applicants who had a significant number of applications still pending in the 2003 window will likely have most of their applications dismissed (losing their investments in time and money in preparing those applications in 2003). The dismissal of many of these applications may impede service to the public as some of these translators would likely replace translators that may be bumped by new noncommercial stations proposed in the recent noncommercial FM filing window. And AM licensees who were hoping that some of these translators could be granted to provide them with FM translators on which their signals could be broadcast may not have such as many opportunities.

For full power stations, many of the simplified city-of-license change procedures that were only recently adopted to allow easier improvements for FM stations may now be complicated again, as LPFM stations will have to be protected. These LPFM stations, which were licensed as secondary facilities, may now be precluding new service by full-power primary stations.

As stated above, the full text of the decision has not been released – this summary is from statements made at the FCC meeting and from the Press Release that is lacking in many essential details. Broadcasters should be alert for that order to determine exactly how these new rules, and the potential for even more changes in the future, may affect their current or planned operations.

About David Oxenford

David Oxenford represents broadcasting and digital media companies in connection with
regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years. Continue Reading

Stay Connected

About

David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.